REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: P57/2025
In the matter between:
CARMEN ROWAN GALLON Petitioner
and
THE STATE Respondent
__________________________________________________________________________
JUDGMENT
__________________________________________________________________________
NOKO J. (Bokako AJ concurring).
Introduction
[1] The petitioner, Carmen Rowen Gallon, was charged 38 counts of fraud totalling
R20 605 834.49 as the potential prejudice and R15 522 429.70 as the real prejudice suffered
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by her erstwhile employer, Sasol South Africa (Pty) Ltd (“Sasol”). Thirteen of the charges
fell within the province of section 51(2) of the Criminal Law Amendment Act1 105 of 1997
(“CLAA”) which provides for minimum sentences in respect of convictions for cert ain
offences. The remainder of the counts did not fall within the provisions of minimum sentence
regime.
[2] The petitioner who was represented appeared before Regional Court Magistrate B
Oswell (Court a quo) where she pleaded guilty to all the charges in terms of section 112 of
the Criminal Procedure Act2 (“CPA”) and convicted as such. She was sentenced to 15 years
each in respect of the 13 counts which fall within the Minimum sentence regime and 15 years
each in respect of 25 charges which fell outside the minimum sentence regime. The court a
quo directed that the sentences imposed would run concurrently except that 5 years in respect
of the conviction in respect of count 38 would run consecutively. The effective sentence was
therefore 20 years. The petitioner agreed to forfeit her assets to the Assets Forfeiture Unit in
terms of section 18 of the Prevention of Organised Crime Act3 and the pension fund interest
for the benefit of the Sasol.
[3] The petitioner was aggrieved by the sentence and launched an application for leave
to appeal on 31 January 2022 which was dismissed by the court a quo. The petitioner then
launched the petition in terms of section 309(C) of the CPA on 21 November 2025.
[4] The petition was instituted outside the time frames prescribed and to this end it is
accompanied by an application for the condonation. The main reasons advanced for the late
filing was the fact that the petitioner financial resources were depleted having been
terminated as employee by Sasol and her assets being forfeited to the AFU. The petitioner
further contended that her appeal has prospects of success and on that basis, condonation
should be granted.
should be granted.
[5] The application was not elegantly crafted and failed to provide proper account
detailing standard pointers to be addressed when condonation is sought4 as it would be noted
1 Act 105 of 1997.
2 Act 51 of 1977.
3 Act 121 of 1998.
4 The Constitutional Court held in Grootboom v National Prosecuting Authority and Another [2012] ZACC 37
the court held that that “… the standard for considering an application for condonation is the interest of justice.
However, the concept of interest of justice … includes the nature of the relief sought, the extent and cause of
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below, we are persuaded that there are good prospects in the appeal hence the condonation
should be granted.
[6] Concerning the merits of the petition, the raison d’ etre underpinning the petition are
captured under two main reasons. First, that the court a quo erred in failing to find that the
petitioner has placed factors which warrant departure from the prescribed minimum sentence
as envisaged in terms of section 51(3) of the CLAA. Second, the court a quo failed to present
proper foundation upon part of the sentence in respect of conviction under count 38 should
not run concurrently with other sentences.
[7] The petitioner contends that the court a quo erred by failing to have regard to the
following factors as constituting compelling and substantial reasons to warrant deviation
from the minimum sentence. The factors are: (1) that the petitioner was a first offender ; (2)
she was remorseful hence pleaded guilty to the charges. She willingly agreed to sign over her
petition to the complainant and did not resist the confiscation order , (3) she is a primary
caregiver and a single mother (the husband having passed on after the sentence was imposed).
The Magistrate focussed on the fact that the children were not dependent on the petitioner
and overlooking to continued role she played to them as a mother. (4) the petit ioner was
under financial pressure of looking after the extended family , the situation worsened by the
fact that the husband was unemployed. (5) the petitioner was subjected to an abuse and
neglect by her husband. The lack of financial controls contributed to the ongoing criminal
conduct which went undetected for 5 years. (6) the petitioner was motivated to steal for the
altruistic reasons of g iving those in need and this should have reduced her moral
blameworthiness. (7) as it was not for personal gain the total asset value was 800k at the time
when forfeiture order was made. Add ed thereto is the fact that she also surrendered her
when forfeiture order was made. Add ed thereto is the fact that she also surrendered her
pension fund to the former employer/complainant as a sign of remorse.
[8] The petitioner contends that the court is enjoined to have regards to the above factors
cumulatively and has co mmitted a misdirection as she exercised her discretion concluding
that they do not constitute compelling and substantial circumsta nces warranting departure
from minimum sentence.
the delay, the effect of the delay the administration of justice and other litigants, the reasonableness of the
explanation for the delay, the importance of the issue to be raised in the intended appeal; and the prospects of
success.”
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[9] Further, that it is a misdirection to have imposed a sentence of 20 years which more
than the prescribed minimum sentence without any warning to parties to prepare and without
proper motivation when a sentence is imposed . Th is was captured under para 14 of the
petition where it is stated that
“However, the court gave no express reasons for going beyond the 15 years, nor did
it warn the defence that such an increase was in contemplation to allow argument on
this point. This constituted a misdirection . If a court intends to exceed the normal
range or prescribed minimum, it ought to justify that decision clearly on the record
and allow the parties an opportunity to address the issue”.
[10] The petitioner referred to the judgment of the SCA in S v Treasure 2025 JDR 4229
where it was held that the accused who was found guilty of having stolen 10 million from
the Covid Relief Fund was sentenced to 10 years imprisonment. To this end the petitioner
recommended that a sentence of between 8 and 12 years would be appropriate.
[11] With regard to the contention that principle s relating to directing that the sentence
where appropriate be ordered to run concurrently were not properly followed. It is required
of the presiding officer that proper reasons should be set out to explain the basis
differentiating the 5-year period of the sentence which was ordered to run consecutively from
other sentences. The differentiation could have been based on amount involved or the nature
of crime committed in relation to others. This was not done, the petitioner argues.
[12] averred further that an appropriate sentence should have I must outrightly dismiss this
contention as on the proper analysis of the sentences the court a quo did not exceed the
prescribed minimum sentence in respect of any of the convictions. What the petitioner may
correctly quarrel with is that sentence in respect of count 8 should have run concurrent with
other sentences. Further elaboration would be noted below.
other sentences. Further elaboration would be noted below.
Legal principles and analysis
[13] It is trite that compelling and substantial factors have not been defined in the statute
and courts have been reluctant to attach any definitive meaning. Further in the exercise if
deciding where a case for departure has been presented the court is not bound to have regard
to single factor, but factors should be considered cumulatively.
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[14] The petition marshalled her case on the reduction of the sentences which were
imposed in terms of section 51(2) of the CLAA which refers to the convictions relating 12
counts. Having left out the sentences of 15 years imposed in respect of the other 25 counts
appears to mean that the petition is content to serve 15 years so imposed. This appears to be
preposterous, and the order of the appeal court may ultimately become academic if the
sentences are reduced in terms of section 51(3) of the CLAA to a period below 15 years as
the petitioner would nevertheless still serve 15 years imprisonment imposed in respect of
convictions not falling under section 51(2) of the CLAA.
[15] The petitioner’s contention that the court a quo erred in not ordering concurrence for
whole sentence in respect of conviction relating to count 38 has merits. Ordering concurrence
of sentences is dealt with in terms of section 280(1) of the CP A the courts are enjoined to
have regard to cumulative effect of the sentences which may at the same time section 280 (2)
of the CPA which provides that punishments pursuant to conviction on several counts shall
run consecutively unless the court has ordered. Makgoka J stated in Mthethwa5 that an order
that sentences should run concurrently is called for where the evidence shows that the
relevant offences are inextricably linked in terms of locality, time, protagonist and
importantly, the fact that they were committed with one common intend.6 (S v Mokela 2012
(1) SACR 431 (SCA) para (11) , where it was stated that This is so because the evidence
shows that the two offences are inextricably linked in terms of the locality, time, protagonists
and importantly the fact that they were 5 committed with one common intent. ” In this case
the modus operandi was the same. Without advancing reasons for the different treatment of
the sentencing the presiding officer may have (or has) exercised her discretion arbitrarily.
the sentencing the presiding officer may have (or has) exercised her discretion arbitrarily.
[16] The Supreme Court of Appeal in Maphaha7 quoted with approval the sentiments set
out in S v Smith 2012 (1) SACR 567 (SCA) at para 7 where it was stated that
‘What the test of reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law, that a court of appeal could
reasonably arrive at a conclusion different to that of the trial court. In order to
5 S v Mthethwa and Others 2015 (1) SACR 302 (GP).
6 See also SCA in S v Nemutandani (944/13) [2014] ZASCA 128 (28 September 2014). At para 111 where the
court stated that ‘…by not ordering the sentences to run concurrently, the trial court had committed an
irregularity’.
7 Maphaha v The State (174/2017) [2018] ZASCA 08 (1 March 2018).